October 31, 2005

The judiciary is, by its traditional nature and historic role, a reactive institution. As it should be, and as it was, until 50 or so years ago.

Judges are not terribly good at "advancing" social policy. Although an argument can be made that more Americans support abortion rights due to the Court's ruling in Roe and subsequent opinions, it is hardly the case that Court's political legislating in this area has ended the debate. Indeed, it's exacerbated it; even people who are pro-choice on policy grounds (like me) find Roe v. Wade to be a horrendous judicial decision.

The same on civil unions/gay marriage. Surely it can't have escaped the notice of the Philospher Kings in our judiciary that it was the Massachusetts Supreme Judicial Court's nakedly political diktat on gay marriage that most raised the hackles of conservatives -- and moderates. States like New Jersey that enacted civil union laws through the constitutional method of doing so -- you know, boring legislators passing boring laws, without the sexy heat and controversy of judges saying "The Constitution demands this, and you must obey" -- are barely mentioned in the various briefs on the culture wars.

The One Big Success of the Court pushing society in a particular direction was Brown v. Board of Ed. But how much of the country's rejection of racism and Jim Crowism and etc-ism was actually due to that decision itself, and how much was due to the political persuasion of the country that such things were malevolent and anti-American? I would say mostly the latter -- had the country not decided that racism as A Big Bad Thing, we would be having disputes over Brown as intense as the disputes over Roe.

The Court has little persuasive power to actually change minds.

And so I find Charles Schumer especially ridiculous today. Does Schumer really think that the only thing keeping whites from maliciously repressing blacks is a line of Supreme Court decisions? Hasn't he sort of noticed that overt racism is nearly gone -- and mercilessly attacked when it shows itself -- and even covert racism is on the steep decline?

What Chuckie Schumer fears, of course, is not that that "rightwing ideologues on the Court" could possibly unsettle conensus national decisions that are so ingrained in America that they hardly need enforcement. There will be no more Rosa Parks, partly due to the fact that no one will ever ask a black woman to give up her seat on a bus to a white man just because she is black and he is white.

What he fears is that highly debatable and dubious "advancements" in civil rights -- a strong "Constitutional" mandate for quotas and the like -- will no longer have five liberal champions on the Court. He tries to scare us with bugaboos about America returning to the Deep South, circa 1953, but it's a ruse. What he really fears is that very questionable policies -- policies which are highly debatable, not mentioned or implied in the Constitution, and which should be subject to the normal process of political persuasion and then either political acceptance or rejection, such as quotas and set-asides -- will have to contend in the political arena on their own merits, without Philospher Kings dictating that the nation adopt them.

3
Living in a democratic republic means that you have to live by legislative and judicial due process. Which is to say as long as a given result was brought about by due process, even if it leads to an outcome that you may not like, it must be accepted as legal and binding.

Our due process has two prongs: the legislative, which establishes the laws we live by; and the judicial, which enforces those laws.

But many on the Left dislike this process as written because they always see things in light of the end result -- so if the end result is "wrong", then ipso facto the process that led up to it was also "wrong" even if it was "legal". In short, Leftists distrust this aspect of democracy -- they prefer a dictated "right" outcome to a democratically-approved "wrong" one.

Posted by: Monty at October 31, 2005 09:27 AM (cB/4p)

4
You think you might want to get past the NOW WITHDRAWN Miers nomination at some point this century, Allah?

Posted by: Megan at October 31, 2005 09:31 AM (XyQ+P)

5
America will never return "...to the Deep South, circa 1953...", because the Democratic Party will never regain that kind of power.

Posted by: Dave at October 31, 2005 09:35 AM (vj7b8)

6
I disagree with the notion that court decisons don't change minds on social issues.

We might imagine people are set in their beliefs, a stupid decision almost no one will actually read can't affect the contents of people's cjharacter: "Who cares what those pointy heads, think! I know X is wrong!" The problem is though, whether we believe X is wrong is greatly a matter of whether society around us tells us X is wrong. The DNA of the Roman's who enjoyed the public spectacle of watching Christians eaten by lions isn't different from ours, although the idea is unimaginable to us.

Human's are social sheepish creatures and have evolved to not be out of lockstep with the group around them.

A kid growing up in Little Rock today may well feel discrimination is wrong, feel it in their bones, but that same kid, growing up in the 40/50's of Little Rock may feel the exact opposite, may KNOW blacks and white's shouldn't intermingle. The kids DNA hasn't changed but society's signals have, that what he will be ostracized to a degree for believing 'wrongly.'

I agree, a S.Ct. decision isn't a strong signal on its own. As I said, almost no one actually reads the thing, but it is powerful in that it's the first, unstoppable domino putting the institutional weight of society behind its view.

And *you* may not change your beliefs all that much just because society signals otherwise, but some will (remember Wallace with "Segregation now, segreatio forever?" Boy his tune changed) and, most certainly, your kids will grow up in a world where it is more the 'outsider' who believes the dinsosaur notions you still cling to.

Just saying, S.Ct decisions do shape a society's beliefs.

Posted by: Reo Symes at October 31, 2005 09:38 AM (kUNrb)

7
Chucky Schumer with his IQ of a amoeba says that the new judicial canadate would reinact jim crow what kind of idiotic babble is this? why dont he just instead go soak his head

Posted by: spurwing plover at October 31, 2005 09:42 AM (Zy1Y5)

8
You think you might want to get past the NOW WITHDRAWN Miers nomination at some point this century, Allah?

If you'd actually read the fucking post instead of just the headline, Megan, you'd realize that my point has nothing to do with Miers. It has to do with Ace's hypothetical there about contraception laws.

Christ. Do you always have a bug up your ass?

Posted by: Allah at October 31, 2005 09:45 AM (sFdsa)

9
Reo, is it the court decisions that drive new norms or is it modern media inventions that expose people to areas outside their relatively limited environment?

Posted by: JFH at October 31, 2005 09:47 AM (arxyn)

10Allah: Doin' my best for you there, hon.
You didn't specify what you were talking about and you've had a bug up your ass for months now.

12
I'm getting all warm and fuzzy here. Is there anything the Supreme Court can't do! I had no idea that the Supreme Court could change "society's signals". Where is that in article III of the constitution again? Seems to be missing in my copy.

14
JFH: Yeah, that's the question. The problem though is that it's hard to disentangle, the Court isn't out in front of what MTV is telling us we should believe. Courts seem to be following the cultural elite's lead and the cultural elite has already been broadcasting the 'proper moral position' from atop their media perch before the court acted.

But when the court does get out front first, we can see the culture respond to it.

Look at how we perceive 'sex harrassment' in the workplace. (admittedly not a S.Ct. led issue, but certainly a judically enforced one.)

The courts willingness to turn what may have previously been considered loutish behavior in tortious activity has forced Corporations through their HR lawsuit-terrified departments into enacting seminar 'concentration camps' to change corp. culture.

We can say that "aw, nothing's changed. People still believe the old ways, nothing wrong with a little loutishness, they just act different" but I doubt that's true. At some level, we're just more easily outraged by workplace inappropriate behavior than in the past, even if we still cling 'in the back of our heads' to the belief it ain't that bad.

Fewer still cling to old senseibilities. Moreover, young people come into the workplace with a different mindset. HAd the courts never put their enforcement weight behind 'workplace harrassment' I believe our culture would be at a different consensus on it.

Courts matter. Decisons matter. When the institutions of society are forced to say X is wrong, sooner or later the people will get in line behind it, internalize it. Courts are a big domino.

I’m saying you place too much emphasis on the court’s power and not enough on the society itself. You think sexual harassment law was handed down from the cloaked geniuses of the court? Wasn't sexual harassment law created as part of political process that started with suffrage and culminated with 60's feminism?

Social change occurs in a society, not in a courtroom. It is the arrogance of most of the judiciary to think they can dictate these changes. In the rare circumstance that the court has tried to get out ahead of society on an issue we end up with acrimonious prolonged debate. If anything I think the opposite is true by trying to enforce a fiat the courts delay change.

The courts should police change and not attempt to bring it about, if for no other reason than they are not empowered to under our system of government. You are not alone though Justice Breyer believes as you do that “the court knows better". Just read his new book.

16You are not alone though Justice Breyer believes as you do that “the court knows better"

I believe nothing of the kind. Just saying that courts do change minds, not that such is their proper role.

Posted by: Reo Symes at October 31, 2005 10:49 AM (kUNrb)

17
Dr. Reo, It seems to me that your point is summed up by the old saying, "The law teaches." Whether the law is set by the courts or by legislatures, the law teaches the norms of our society. It is with the law, good or bad, that civil discourse begins.

Posted by: Brown Line at October 31, 2005 12:19 PM (VrNoa)

18
Good post, Ace. Don't forget, when praising the Supremes for Brown v. Board, that at best all they were doing was overturning themselves (Plessy v. Ferguson). If the Court hadn't cemented segragation into the law in 1896, the political process probably would have gotten to integration sooner than if the Court never said a word about it.

19Our due process has two prongs: the legislative, which establishes the laws we live by; and the judicial, which enforces those laws.

Actually, it is principally the function of the executive branch to enforce those laws.

Posted by: Michael at October 31, 2005 01:30 PM (pRtzm)

20
To elaborate, the judicial branch is not primarily responsible for enforcing the law. To the contrary, it serves a a check on the police power of the state. We could enforce the laws much more efficiently if we didn't have to fuss with such things as trial by jury, due process, the right against self-incrimination, and so forth.

Posted by: Michael at October 31, 2005 01:37 PM (pRtzm)

21
I wonder if he would have said the same thing about Janice Rogers Brown...

22
As a voter from New Jersey when a certain governor-who-I-voted-for-but-who-shall-remain-nameless proposed and helped lobby for Group Rights for People Who Choose to Commit Dysfunctional Acts, I can state with authority that most of us who so voted were dismayed, scandalized, disgusted, and demoralized. Yet, aside from the passing hope that someday "Group Rights" might be declared unconstitutional where they violate equal protection, we generally conceded the majority has every right to pass putridly bad laws.

That's called "democracy". Legislation by judicial fiat however, is known as "tyranny".

24
Schumer, Reid, Kennedy et al have developed a method of putting anyone with an IQ of more than their hat size on the defensive, and that is to redefine "extremism." When I was growing up, "extremism" was always associated with the left, with "radical" Democrats, with communists and socialists. Those were the extremists because they were so far out of the mainstream.

By obtaining exclusive rights to use the word "extremism", the radical left has removed itself from its outside-the-park position and made anyone with a shred of intelligence, decency or patriotism the one to be considered "out of touch."

Such an appropriation of our language has been clever, and it is up to intelligent, decent and patriotic people to take back that language and expose the moonbats for what they are: sick, whiny little nigglings that, through their own sense of moral and intellectual superiority, wish to enslave every person in this country that doesn't happen to agree with their belief in their own moral and intellectual superiority.

In other words, Schumer, Kennedy and Reid would be king, and we, the people, "can eat cake".

The elitists of the country, the Dems, are showing their true colors. They only wish for "a fair hearing and a straight up-or-down vote" when the candidate is someone who will not end up exposing their stealth takeover of our government. Alito scares them to death.

Posted by: Carlos at October 31, 2005 03:48 PM (Vd5xZ)

25
The role of the judiciary is to ensure that the government is self-consistent. That is, if the previous rules are that A+B+C results in something illegal, that the legislature cannot say that A+b+C is legal unless they distinguish B from b.

As an extra, added benefit, they also decide cases.

It used to be that the roles were reversed -- the primary role involved cases and the secondary involved law. That ended when the legislature became permanently stupid.